The statement by Wanita MCA chief Datuk Heng Seai Kie that the principle of double jeapordy ought not to apply to sex offenders (pg 3, The Star, 4.2.2017) is a suggestion that cannot be accepted and must be addressed at once.
Heng’s said suggestion was understandably made at the height of the controversy surrounding the return of convicted Malaysian rapist Selva Kumar Subbiah from Canada which has sparked nationwide concern as to the measures that ought to be taken to prevent sex offenders from reoffending. She was further reported to have said, “although they have served time behind bars abroad for offences committed overseas, they must face similar charges and conviction on home soil.”
There can be no doubt that sexual offences are possibly the most heinous of crimes which ought to be severely punished but Heng’s suggestion cannot be entertained as same flies in the face of Article 7 (2) of the Federal Constitution which reads:
“A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.”
The above is a constitutional guarantee that no one can be tried for the same offence twice which has come to be known as the rule against double jeapordy or autrefois acquit or autrefois convict which means “previously acquitted or convicted”, as the case may be, for a particular offence, in which case, a person cannot be tried for it again.
Abolishing the rule against double jeapordy for any offence is dangerous as this may be abused and may result in repeated convictions on offenders for the same offence with no end in sight.
As the rule against double jeapordy is a constitutional guarantee as outlined above, Heng’s suggestion would necessarily require a constitutional amendment in order to see the light of day.
Heng and the MCA should concentrate on efforts to avoid the recurrence of sexual offences such as, perhaps, the introduction of a national registry of sex offenders or placing tracking devices on repeat offenders to ascertain their whereabouts. There can be no doubt that all parties, regardless of political affiliation, would be united in such a cause but demanding the abolishment of the rule against double jeapordy is certainly a step in the wrong direction.